Roe v Wade Overturned, What Comes Next? Part 1: The Impact & The Rationale

I just finished reading the US Supreme Court’s decision to overturn Roe v Wade, making the legality of abortion a democratic choice for each state. Why was it overturned? What comes next for the future of American demography, family, morality, and sexuality? Is this really a victory for pro-life and death knell for pro-choice? Alvarism subscribers can privately request access to the spreadsheet I used for the calculations.

The Impact on Prevalence

I estimated how many women are likely to be affected by this decision to put perspective on the “victory/defeat.” We have to dig into many statistics to answer that question:

• How many women have had at least one abortion? 15%

• How many women live in states where policies will permit:

• Elective Abortion: 78%

• Abortion for serious threats to mother’s health: 100%

• Abortion after rape & incest: 80%

• How many women will live in states that will forbid abortion for rape & incest: 20%

But simply living in a state where elective abortion is not permitted does not mean a woman will be affected by it, because abortion service demand varies state-to-state. The distribution of abortions indicates that the states that will outlaw elective abortion already have fewer abortions to begin with. When we adjust the data for distribution of abortion per state, only 13.2% of women in the United States will potentially be affected.

Then we must account for the fact that only 15% of women have ever had one or more abortions. Simply living in a state that prohibits elective abortion does not mean you are a woman who will ever be affected by that prohibition. When adjusted for the service demand of 15% of all women, then we discover that only 1.98% of American women are likely to be affected by new abortion restrictions, living in 13 states that will outlaw elective abortion. As far as having an abortion for any reason imaginable, 98% of American women who want one will still be getting one in their own state. Perhaps many of the 2% of women in prohibitive states will simply travel to neighboring states instead. That’s not exactly the monumental “victory” that pro-life activists are hailing, and not exactly the “civil rights apocalypse” that pro-choice activists are trumpeting, right?

Utah, Mississippi, and Wyoming will outlaw elective abortion but allow it for rape, incest, and threats to the mother’s health. Texas, Arizona, Missouri, Alabama, Louisiana, Kentucky, Oklahoma, Arkansas, Nebraska, and North Dakota will outlaw abortion in all cases except when the mother’s health is threatened.

Fake News & Propaganda

Pro-choice chicken-littles want you to believe in a civil rights apocalypse as a result of this SCOTUS decision. While it’s never really been an honest clique of American civics, the deception they’re using now is extraordinarily banal.

When you see the term ”near-total ban on abortion,” you are being deceived. I had to dig through dozens of news reports on different states to discover what exactly they mean by the ambiguous phrase. Sometimes, they used it to describe a state that will outlaw elective abortion, sometimes a state that will allow abortion for rape and incest as well, and sometimes a state that will still permit elective abortions up to six-to-fifteen weeks after conception.

The thirteen states that I previously cited are the ones where elective abortions will be outlawed. Some journalists are claiming that “abortion will soon be illegal in half of the states.” That is patently false. The thirteen states I mentioned are the only ones where it is fairly certain that elective abortions will be illegal. In every state, abortion will still be legal for serious threats to the mother’s health. In twelve to thirteen more states, they’re likely to reduce the deadline to 6-to-24 weeks after conception.

What was shocking to me is that 31 states still permit abortion so late in pregnancy, and that seven even permit termination of a viable human being after 24 weeks of gestation. While it’s not a prevalent experience, since only 1% of all abortions occur after 20 weeks, the misrepresentation of the prevalence and medical reality of late-term abortions is common. People should understand exactly what it means:

“Abortions performed after 20 weeks gestation, when not done by induction of labor (which leads to fetal death due to prematurity), are most commonly performed by dilation and evacuation (D & E) procedures.  These particularly gruesome surgical techniques involve crushing, dismemberment and removal of a fetal body from a woman’s uterus, mere weeks before, or even after, the fetus reaches a developmental age of potential viability outside the mother.  In some cases, especially when the fetus is past the stage of viability, the abortion may involve administration of a lethal injection into the fetal heart in utero to ensure that the fetus is not pulled out alive or with the ability to survive.

Late-term abortion is not an exact medical term, but it has been used at times to refer to surgical dilation & evacuation (dismemberment) abortions as well as intact dilation & extraction (partial-birth) abortions performed in the second (13-27 weeks) and third (27-39 weeks) trimesters.  The graphic, unpalatable nature of abortion procedures performed on fetuses of such advanced gestation raises many objections, even among parties who might support abortion at earlier stages. For these reasons, and because of the increased short-term health risks of these procedures for women, numerous states have considered limiting late-term abortion procedures after 20 weeks gestation.”

Another item of misdirection involves how common abortion is. Newsweek says 40% of women have had abortions, but their methodology was fallacious. First, they excluded females under the age of 18. That would be like calculating life expectancy and excluding youths just because very few of them die. If we want to answer the question, “what percentage of women have ever had at least one abortion during their entire life,” then we can’t exclude the years of their lives when fewer of them get abortions. And they also did not adjust their estimation by how many women get more than one abortion. Their 40% figure presumed that not a single woman has ever gotten more than one abortion. In reality, 50% of abortions are done by women who have already had one abortion.

When we adjust our estimation for these realities, the correct answer to the question is, “15% of American women have had at least one abortion.” The fact that abortion is directly irrelevant to 85% of women, is a testament to how politicized and exaggerated the legality of abortion has become.

For those who believe that abortion is the killing of an innocent human being, their animus and disgust is understandable. For those who believe that abortion is not killing a human being, but merely a component of women’s rights and happiness? I would ask them to not only question their understanding of how truly relevant abortion is to the majority of women, but also, if they truly believe that the 15% of women who are having abortions, are genuinely happy people whose choices are well-served by a culture of normalized abortion.

Perhaps if both sides listened to each other with a little more respect, there wouldn’t be riots and extreme anxiety emerging from false visions of Stepford Wives and “fascism.” For the record, fascists loved abortion. It was a key part of their eugenics programs.

The Rationale

I won’t put words into our SCOTUS Justices’ mouths. I will simply quote the 213 page decision so that you can understand the rationale for the court’s ruling. Here are ten highlights from the decison:

In short:

”Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”

Pre-Roe legal opinions & common law:

“Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow.”

The 14th Amendment’s context of “liberty” does not confer a legal right to unnatural human reproductive interventions:

”In interpreting what is meant by the Fourteenth Amendment’s reference to ‘liberty,’ we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy. That is why the Court has long been 'reluctant' to recognize rights that are not mentioned in the Constitution.“

Roe v Wade was judicial activism that usurped power from the people:

”Roe was on a collision course with the Constitution from the day it was decided, Casey perpetuated its errors, and those errors do not concern some arcane corner of the law of little importance to the American people. Rather, wielding nothing but "raw judicial power,"... the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.”

Roe v Wade was based upon ‘an erroneous historical narrative’:

”Roe found that the Constitution implicitly conferred a right to obtain an abortion, but it failed to ground its decision in text, history, or precedent. It relied on an erroneous historical narrative; it devoted great attention to and presumably relied on matters that have no bearing on the meaning of the Constitution; it disregarded the fundamental difference between the precedents on which it relied and the question before the Court; it concocted an elaborate set of rules, with different restrictions for each trimester of pregnancy, but it did not explain how this veritable code could be teased out of anything in the Constitution, the history of abortion laws, prior precedent, or any other cited source; and its most important rule (that States cannot protect fetal life prior to ‘viability’) was never raised by any Opinion of the Court party and has never been plausibly explained.”

The notion that overturning Roe will lead to reversals on same-sex marriage, contraception is a red herring, and invalid slippery-slope argument:

”Finally, the dissent suggests that our decision calls into question Griswold, Eisenstadt, Lawrence, and Obergefell. But we have stated unequivocally that '[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.' We have also explained why that is so: rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed 'potential life.'”

The SCOTUS lacks the authority to impose a ‘theory of life’ upon the nation:

”Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth. The dissent, by contrast, would impose on the people a particular theory about when the rights of personhood begin. According to the dissent, the Constitution requires the States to regard a fetus as lacking even the most basic human right—to live—at least until an arbitrary point in a pregnancy has passed. Nothing in the Constitution or in our Nation’s legal traditions authorizes the Court to adopt that ‘theory of life.'”

After 50 years, ‘egregiously wrong’ Roe failed to deliver a ‘national settlement’ of the issue that it promised, and deepened division

“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

The power to decide abortion is finally a democratic right. People can replace their local officials and national legislators much easier than they can affect changes to the Supreme Court:

“Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office. Women are not without electoral or political power. It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.”

SCOTUS Justices are not soothsayers. We should not treat them like oracles, and we should not expect them to shirk duties out of fear of the future:

“We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly. We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.”

Next Article:

We will look at glaring omissions from the decision, dissenting opinions for Dobbs, and what the indirect consequences will entail for our social fabric, economy, politics, and governance.